80

One difference is that the trial (and, behind it, criminal prosecution and legal punishment) is something the state is organising for its own purpose in the first place. The right to a speedy trial is not a right to a trial or anything along those lines, it is a limitation on the conditions under which the state can apply punishment and restrict someone's ...


42

The right to a speedy trial just means that the prosecutor may not delay the trial unreasonably. The prosecutor is not actually required to provide a trial. The trial is a requirement to keep the defendant incarcerated or otherwise limited, e.g. by a bail agreement. So a speedy trial is a limitation on the prosecutorial power. If tried, the trial must be ...


24

The linked article defines "rights" in a particular way and then goes on to argue that "healthcare" cannot be a right under that definition. This is akin to the "No True Scotsman" fallacy. Hamish sees an Englishman wearing highland dress incorrectly. "No Scotsman would ever put a sporran on upside-down" he claims. His wife responds "But don't you recall ...


21

Summary: Main reason was to enable people to prevent being forcefully oppressed by the government via the means of standing army (as happened in Europe and the rest of the world in pretty much every rebellion ever in civilized history, but that's a topic for History.SE). Some supporting quotes below: Here's James Madison fully agreeing with the right to ...


21

The Maryland Law Review published an article summarizing several sources of the U.S. freedom of the press (Bogen, 1983). Parliamentary Privilege Prior to the American revolution, freedom of press and speech were only applied to members of Parliament as a part of their official duties. At this point the two rights were distinct: members of Parliament ...


12

Many Constitutional scholars argue that these are not redundant clauses. Remember, during this time the printing press was still a relatively new invention. Freedom of the press likely refers to protecting use of the press as a technology, as opposed to an industry. Freedom of speech may well overlap with the duties of the press as an industry, but the ...


10

I'm guessing that the Second Amendment isn't covered by substantive due process; otherwise I think the federal background check laws we have now would probably have been ruled unconstitutional. As the other answer already stated, it is a substantive due process right, as per the Supreme Court. The thing is that a federal background check is due process. ...


9

The scenario highlighted by your question already exists. Federal policy exists where the Government can steer federal monies away from private companies that have discriminatory practices, under Executive Order 11246. Business that perform contract work for the Federal government are prohibited from "engaging in workplace employment discrimination on the ...


9

I don't think the two can be linked. In your speedy trial example, a defendant would be just fine if there was no trial since without one they cannot possibly be punished. It is the state that wants a trial so that they can then provide punishment for the accused if and when they are found guilty. Without this trial, it would be a violation of the 6th ...


8

Here's a great article on the history of the 2nd amendment It essentially boils down to the philosophy that political power is enforced by the Army, and that If the army and the citizens were separate from each-other then the army would have more political influence than the non-army citizens. It's harder for a tyrant to use his army to subjugate the ...


8

The relevant legal doctrine for this kind of setup would be "the Lemon Test", named after the court case Lemon v. Kutzman. Specifically, as this page shows, the Lemon test puts all establishment cases into a three part test: Three ... tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its ...


8

Ever since Marbury v Madison, the Supreme Court of the United States has had the power to determine what is and what isn't constitutional, and to strike down (or roll-back) an unconstitutional law. "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original ...


6

While Bobson gave an excellent answer, I am going to step out and give a slightly different one, bearing in mind the exct wording of the question The constitutionality of the principle of government forcing businesses to not discriminate against protected minorities was established during the legal challenges to the Civil Rights Act of 1964. The act forced ...


6

The question is quite biased towards "politicians and big business have vested interests and influence in keeping citizens dumb", as the context is much more complicated. Teaching politics, laws and regulation is only partially school's job, according to this article and does not seem to get lower as time passes: [..] that schools are still teaching ...


6

Per the Firearm Owner's Protection Act, No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United ...


6

The concept you're looking for is the Third-Party Doctrine (wiki). As a concept, it's derived from a 1979 SCOTUS case (Smith v. Maryland) about whether the authorities could gather information about a phone call by placing a device (a "pen register") in the telephone company's office. To quote the decision (emphasis mine): Given a pen register's ...


5

The ability of a private organization to discriminate based on religion is governed by the Religious Freedom Restoration Act or the state equivalent law. Essentially these laws prohibit the government from restricting the free exercise of religion unless the state can prove a compelling interest in doing so and then only in the least restrictive way possible....


5

No the Mortgage interest deduction would not be unconstitutional. DOMA was the government restricting benefits to a distinct group and violating equal protection. The judicial precedent for equal protection for federal laws is somewhat fuzzy as there is not equal protection clause specifically written as part of the fifth amendment, and the specific clause ...


5

Simply put, this is exactly the question that Elaine Photography is going to decide. And, until the court actively overrules the lower court decision, the answer is, in theory "Yes, they can." The facts of the case are simple enough - when the religious right to "practice the free exercise thereof" conflicts with the rules required of a place of public ...


4

You can read the debate on this bill on the Library of Congress website starting here. No roll-call vote was taken, but the amendment passed through a committee of the whole by a vote of 27 - 22. Below I have summarized the House debate at this time (as far as the record shows): James Madison James Madison was one of the most forceful advocates of the ...


4

In the United States, weapon ownership is a constitutional right (second amendment). The federal government cannot remove a person's right to own a gun without due process. The fourteenth amendment extended that to include state governments. This was only officially recognized in 2010 for the second amendment, although it was previously recognized for ...


4

McDonald V City of Chicago. Substantive Due Process and Strict Scrutiny were the mechanism used to incorporate the protections of the Second Amendment to the States. In the course of US Constitutional Law, and highlighted by the linked opinion, the right took keep and bear arms is a fundamental right (pg 4). Fundamental rights are subject to substantive due ...


3

Would this also allow a private organization to discriminate on a religious basis, e.g. could the Boy Scouts also prohibit Muslims, Scientologists, or Mormons from joining? The answer is: it depends. Federal anti-discrimination laws normally prevent discrimination by organizations based on race, gender, or religion, but there are a couple of notable ...


3

The rights / protected classes you are talking about are equal protection issues, which fall under the 14th Amendment. (Summarized as equal protection under the law). The Supreme Court decided in 1883 that the Civil Rights Act of 1875, which prohibited private businesses from discriminating against African Americans was unconstitutional because "The ...


3

No, US could not do that in the present legal, cultural and political climate, independently of whether it's a good or bad idea. In the present time, there are strong political forces (who are supported by the judicial decisions) who interpret the Establishment clause of the First Amendment as "Freedom FROM religion" as opposed to merely "Freedom OF ...


3

The idea is that liberty and property are being denied to gay couples that is protected for traditional couples. Liberty in that they are not guaranteed rights that are available to traditional couples specifically to enter into a union and get the protections and privileges that the union provides. Property in that there are tax and other governmental ...


3

It's the ultimate separation of powers. The moment we acknowledge that the right of citizens to self-defend, to defend mutually, and to unite to throw off tyranny is a God-given, unalienable right, the power of both foreign and local governments, and of all organized and unorganized hostiles becomes limited and manageable. It's in the Second Amendment ...


3

The core difference between your two scenarios is the parties involved. In the healthcare scenario, the two parties are both private individuals (healthcare providers and patients). In the judicial example, only one party is a private person while the other is the state. In liberal theory, which liberalism is a piece of, the state exists outside of the ...


2

Since Bolling v. Sharpe, a Supreme Court decisions that came out the same day as Brown v. Board of Education, the 5th amendment's Due Process clause has been interpreted by the courts to also imply a guarantee of equal protection under federal law. The 14th amendment also guarantees equal protection, but only under state law. As there was such amendment ...


2

Yes, your right to complain about the government is a fundamental right, protected by the bill of rights. The first amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to ...


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